Earlier this year, we wrote about the potential changes to Ontario's Employment Standards Act, 2000 ("ESA") and Occupational Health and Safety Act ("OHSA")1 introduced in Bill 79, Working for Workers Act, 2023. The legislation underwent minimal revisions from its introduction at first reading and received Royal Assent on October 26, 2023.
What Employers Need to Know
This third iteration of "Working for Workers" legislation makes a number of revisions to Ontario employment legislation that employers should be aware of. Most notably:
1. Mass Termination
Remote employees are now eligible for the enhanced notice for mass termination that "in-office" employees are entitled to under the ESA. Specifically, for the purposes of Part XV of the ESA, the definition of "establishment" has been amended to include the private residence of an employee where that employee does not perform work at any other location of the employer.
Before Bill 79, the definition of "establishment" in the ESA meant a location where the employer carries on business.
The result is that fully remote workers will now be included in calculating whether 50 or more employees are being terminated at an employer's "establishment" in the same four-week period – the threshold for determining whether the mass termination requirements have been triggered.
When the mass termination provisions of the ESA apply, the amount of notice an employee is entitled to receive is determined by the number of employees whose employment is terminated in the four-week period, rather than by the employee's period of employment. Specifically, the ESA prescribes the following notice periods in the event of such mass termination:
- 50 to 199 employees terminated – 8 weeks' notice
- 200 to 499 employees terminated – 12 weeks' notice
- 500 or more employees terminated – 16 weeks' notice
2. Increased Fines for Employers
The maximum fine that can be imposed on a corporation for a violation of the OHSA has been increased from C$1,500,000 to C$2,000,000. In addition, the maximum penalties under the Employment Protection for Foreign Nationals Act, 2009 have been increased for employers convicted of withholding a foreign national's passport or work permit. Individuals convicted could face fines up to C$500,000 or 12 months imprisonment and corporations may be fined up to C$1,000,000.
These increased fines came into effect on October 26, 2023 and are now the highest of their kind in Canada. These changes follow previous increases to the maximum fines for individuals and corporations under the OHSA that were introduced in the Working for Workers Act, 2022.2
3. Information for New Hires
The Lieutenant Governor in Council now has the ability to make regulations under the ESA requiring employers to provide current or prospective employees with written information about their position. Such regulations may also prescribe when the information must be provided.
To date, no new regulations prescribing the content of the written information have been passed. Press releases from the Ministry of Labour, Immigration, Training and Skills Development have suggested that the required information may include information about their pay, work location and hours of work before an employee's start date.3
4. Military Reservist Leave
The ESA's job-protected leave for military reservists has been expanded to cover time off to recover from physical or mental injuries that resulted from participation in a military operation or activity.
Employees are also now entitled to reservist leave after two consecutive months of employment, rather than the previous three.
Similar amendments were made in the Working for Workers Act, 2022,4 where military reservist leave was previously expanded to include leave for employees participating in military skills training and the qualifying period for entitlement was reduced from six months to three months of continuous employment.
5. Licenses for Recruiters and Temporary Help Agencies
The ESA now includes stricter licensing requirements for recruiters and temporary help agencies regarding compliance with the Employment Protection for Foreign Nationals Act, 2009. This includes the automatic refusal to issue or renew a license where an applicant has contravened certain provisions of the Employment Protection for Foreign Nationals Act, 2009.
These changes supplement the original licensing regime for temporary help agencies and recruiters that was introduced and reviewed in our earlier post on the Working for Workers Act, 2021.5
Takeaways for Employers
The legal landscape for employers in Ontario is expansive and continues to grow. The increased liability associated with violations are an important reminder that employers should review their policies and practices to ensure that they are complying with their obligations under Ontario employment and health and safety laws.
We will continue to monitor and report on legislative amendments as they arise.
For further information about the first two iterations of "Working for Workers" legislation, please see our previous posts from 20216 and 20227.
Footnotes
1. See our previous bulletin on the Working for Workers Act, 2023.
2. See our previous bulletin on the Working for Workers Act, 2022.
3. News Release: Working for Workers Act, 2023.
4. News Release: Working for Workers Act, 2022.
5. See our previous bulletin on the Working for Workers Act, 2021: "An Update on Ontario's Bill 27: Key Amendments for Employers".
6. See our previous bulletins on the Working for Workers Act, 2021: "An Update on Ontario's Bill 27: Key Amendments for Employers" and "Ontario Proposing Significant New Employment Law Changes in Bill 27").
7. See our previous bulletin on the Working for Workers Act, 2022.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
